Article by: Geethu Hanna John

  1. Introduction

According to Encyclopaedia Britannica, “Theft is defined as the physical removal of an object that is capable of being stolen without the consent of the owner and with the intention of depriving the author permanently.”[1] The Indian Penal Code has incorporated theft under the offences against properties. It is crucial to keep an individual’s property protected because property rights bring about economic growth, investment and assure the freedom of an individual. That is why the protection under the law is vital for the property. Chapter XVll of the Indian penal code, 1860 which extends from Article 378- 382 deals with Offences against Property.[2] Some of these offences include theft, extortion, robbery, dacoity Etc. The theft is the most basic and standard offences which extend from Article 378 to 382 under the Indian Penal Code. So, in this article, we are going to analyze the definition of theft, its essentials, remedies, and defences with appropriate case laws.

  • Definition of Theft

 Section 378 of the Indian Penal Code defines theft. It defines theft as follows-

Whoever, intending to take dishonestly any moveable property out of possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft.”[3]

By studying from this definition, we get to know about the essential ingredients that constitute theft. They are as follows-

  1. There should be dishonest intention to lay hold of the property.
  2. The property which is being purloined must be movable.
  3. The movable property must be pilfered out of the possession of another person.
  4. That property must be taken without the consent of that person.
  5. The property should be removed to effectuate the taking of it.

Five explanations of the definition are also included along with the definition in Section 378 of IPC.[4]

  1. A thing so long as it is attached to the Earth not being movable property is not the subject of theft. It states the nature of the movable property, which can help to constitute theft.
  2. The first explanation says that if the moving affected by the same act which affects the severance may be theft.
  3. The third explanation states that if a person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing as well as by moving it.
  4. A person who by any means causes an animal to move is said to move that animal and to move everything which in consequence of the motion so caused us moved by that animal.
  5. The consent mentioned in that definition must be expressed or implied. It may be given either by the person in possession or by any person having that purpose authority either express or implied.

Besides these explanations, Section 377 also includes 16 Illustrations for the topical lucidity.

  • Essential ingredients of theft

There are five essential ingredients to constitute theft –

  1. Dishonest intention
  2. Movable property
  3. Consent
  4. Property removed from the possession of another person
  5. Movement of the property
  • Dishonest Intention

The first essential ingredients to constitute theft is dishonest intention. Initially, the prosecution must prove that the accused acted dishonestly and the circumstances which show that the property has removed in the avowal of a bonafide right, it is not a theft. The servant is not liable for the actions of his master done with dishonestly. Nevertheless, the servant is liable when he does things dishonestly, out of the master’s knowledge or without his consent. In Nobin Chunder holder (1866) 6 WR(G) 79 case[5], the accused servant in the legitimate interest of his master found some outside fishermen poaching on his master’s fisheries. He took away the nets of the fishermen and kept it in his custody. The court held that the servant was not liable for theft as he only intended to protect his master’s interest. If a person takes anything from anyone to cause wrongful gain to one person or wrongful loss to another person, he or she commits theft. In Shriram And Anr. Vs Thakurdas and Anr on 21 April 1977[6], a chief officer of municipal corporation demolished an unauthorized structure in Mumbai. However, he was accused of stealing the debris formed after demolition. The court held that the chief officer was not liable for theft as it is not with the intention of wrongful gain. If a person takes away his property from another person in good faith, he is not liable for theft.

3.1.1 Illustrations:

  • Rakesh owes money for repairing a washing machine to Mahesh. Maharashtra lawfully keeps the washing machine as a security for his dept. Nevertheless, Rakesh takes away the washing machine intending to deprive Mahesh of the property as a security for his debt. Rakesh has done theft even though his property he has done it dishonestly.
  • Rakesh steals a diamond necklace from Mahesh without his consent to keep it with him until Mahesh restores his necklace. Rakesh commits the crime of theft as he has done it without consent.
  • Rakesh tried to take away the property that belonged to him from Mahesh by entering his property and forcefully taking it back. Rakesh is not liable for theft even though he is liable for criminal trespassing and assault.

3.1.2 Case law:

Sitabai Purushottam vs. Emperor on 8th July 1930, Bombay High Court[7]

In this case, a barge owner sold his barge to a complainant and received part of the sales as earnest money. The buyer failed to pay the remaining money within the stipulated time. The owner was charged with theft. The Bombay high court announced that it is not theft because it is not done with dishonestly.

Ramcharan Case (1898) 18 A.W.N. 147[8]

Ramcharan sold some number of trees to Mr X with complete knowledge that it does not belong to him but to Mr.C and Mr.X was not knowing it. The court held Ramcharan liable for trial under the offence of theft.

3.2 Movable property

The second essential ingredient that constitutes theft is movable property. The property that is the subject of theft should be movable. When a thing is attached to the Earth, not being movable is not considered as theft and when it is unattached from Earth is capable of being the subject of theft. The definition of movable property is given in Section 22 of IPC[9]. “The words “movable property” are intended to include corporeal property of every description, except land and things attached to the Earth or permanently fastened to anything which is attached to the Earth.”[10] There are many examples of movable property like Animals, Fish, Human Corpse, Electricity Etc. Let us discuss whether they amount to theft.

Animals: When we consider ownership of the pet animals, if anyone takes the pet animals without the consent of the owners is theft. The punishment can be up to three years or fine or both according to Section 379 of the Indian Penal Code. The procedure of filing a case of theft of animals is first giving the description of the animal, and file FIR duly signed, stamped dated along with time. Hence, proving that animals are capable of the subject of theft.

Fish: Fishes are farae (wild) in nature, meaning they can freely move around without absolute ownership. They can be possessed only by taming or taking them in an area full of water like a pond, tank Etc. The person who tames them should catch fishes in a fishery of his own in a fixed spot, not in any other’s fishery otherwise that will amount to theft.

Human corpse: Stealing a human corpse is a particular case, and it considered as theft because the dead body is not a person. According to Section 378, the subject of theft must be taken out of a person’s possession without the consent of that person. The human corpse is not a person, so it is considered as particular case and described in Section 403 of IPC[11] (Criminal misappropriate).

Electricity: Theft of electricity is a cognizable offence. The police can investigate without any complaint from the electrical inspector or the complainant.

3.2.1 Case law:

Prem Singh And Any. Vs. State of Himachal Pradesh and Ors. on 28 April 1989, Himachal Pradesh High Court[12]

In this case, the owner of the forest is government and trees were cut down by the accused. The court held the accused of the crime of theft.

Pyare Lal Bhargava vs State of Rajasthan on 22 October 1962, Supreme Court of India[13]

In this case, an office file was temporarily removed from the office of the Chief Engineer for one or two days. The court held that it amounts to theft.

3.3 Consent

The third vital ingredient to constitute theft is the consent of the person in possession or the person who is implied authority.

3.3.1 Illustrations:

  • A master gave his dog to be taken care of to his servant till he comes back from his business tour in England. However, the servant without the consent of his master sold the dog and faked its death. The court held the servant liable for theft.
  • Harry gave his book to Percy for reading, Percy’s friend Alice asked the book for sale and Percy sold that book without the consent of Harry. Percy committed theft.

3.3.2 Case law:

K.N Mehra vs. The State of Rajasthan on 17the February 1957, Supreme Court of India[14]

In this case, the court held that at the time of moving of any object, the consent of the person in possession and dishonest intention are the essential ingredients to constitute theft.

Lawrence vs MPC 1972 AC 626[15]

An Italian student was offered a taxi ride with a fixed fee, but after the ride, the driver said more money was needed and decided to take more money from student’s open wallet. The defendant was convicted for theft by the House of Lords. The defendant tried to defend by saying that the student gave the consent to take it from his wallet. Nevertheless, he failed to prove so; therefore, the court held him liable for theft.

3.4 Possession

The fourth vital ingredient to commit theft is to move the property from the person who possesses it without consent. John Salmond defines possession as “possession is the continuing exercise of a claim to the Exclusive use of an object”[16]. The possession has two elements-

  1. Corpus possessionis which means real power over the object.
  2. Animus possidendi which means the intention of the person who possesses the object to stop the interference of any other person.

There are two kinds of possession –

  1. Possession in fact – It is actual or physical possession
  2. Possession in law– The kind of possession recognized and protected by law

3.4.1 Illustrations:

  • Helena had a painting and Mildred took her painting without her consent. The court held her liable for theft.
  • John was walking through a garden and found a golden chain on the ground, not in possession of anyone and took it with him. John is not liable for theft as no one possessed, but he can be liable for criminal misappropriation of property.

3.4.2 Case law:

Hoseenee v. Rajakrishna (1873) 20 WR (Cr) 80[17]

In this case, the court held that more than wild animals tamed animals are likely to be stolen. The property must be moved from the possession of the prosecutor. The stealing anything associated with dead bodies cannot be considered theft because it is not a person, but these can amount to criminal misappropriation. If a person takes a thing which has apparent possessor is not a theft but criminal misappropriation.

State of Maharashtra vs Vishwanath AIR 1979, 1825 case

The transfer of property can be transient. The transfer is not necessary to be permanent or temporary or should have the accused to commit a theft.

3.5 Movement of the property

The last ingredient that amounts to theft is that the property must be moved.

3.5.1 Illustrations:

  • A person tried to steal the statue of the temple in a village. He brought a bullock cart and transported the idol to some other place. The person is liable for theft.
  • Rakesh took a diamond ring from Mahesh’s wife with dishonest intention and without consent. He took it and hid it in a place till the loss is forgotten. Rakesh is liable for theft.
  • Different types of theft

Theft is a broad term with different kinds of crimes under it. They are as follows-

  1. Larceny- Larceny means simple theft in which if someone unlawfully uses other person’s property without his/her consent.
  2. Identity theft– Identity theft is a serious crime where the victim’s credit score and finances are altogether destroyed by using their name, bank account, credit card Etc. without their permission.
  3. Robbery- Robbery is another common type of crime which uses violence to steal other people’s property evoking severe penalties.
  4. Fraud-In this type of theft, false pretences are used to deceive a person to get their property.
  5. Carjacking– Carjacking is a type of theft where one uses forces or reasonable fear of force to get another person’s vehicle.
  6. Grand theft– This is also associated with stealing of any other person’s vehicle but uses the cruel act of violence and high brow theft, for instances embezzlement.
  • Punishments for Theft

The punishment of theft is recorded in Section 379 [18]of Indian Penal Code. It states that-

“Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or both.”

The offence is defined under IPC 379 is theft. The punishment for IPC 379 case is three years imprisonment or fine or both. It is cognizable and non-bailable offence. It is tried in the court of any Magistrate.

  • Case law

Emperor v. Mari Parsu on 22 November 1917, Bombay High Court[19]

In this case, the accused was charged under Section 379 of the Indian Penal Code. The jury sentenced the accused for rigorous three years imprisonment on 23 August. There was also charged under Section 75 of Indian Penal Code, so the Assistant Sessions Judge on 31 August sentenced him to six years of imprisonment. It is against the order of conviction and sentence that the present appeal in preference. Therefore, the judge set aside the judgment made by Assistant Sessions Judge on 31 August and restored the judgement on 23 August; as a result, the accused was sentenced to rigorous three years of imprisonment.

  • Defences of Theft
  • No mens rea / mental intention

No Mens rea is a common type of defence for theft in which a person should prove that the mental intention is not fraudulent. So that person cannot be found guilty of theft. Example, accidentally taking something which a person did not pay from the store.

6.2 Colour of Right / Entoxification

Colour of right as another defence against theft. This defence can be raised when a person mistakenly believed that the possessor right of that stolen object rests with him/ her. The essential thing to note whole dealing with colour of right is that the mistaken belief must be associated with the mistaken understanding about the legal status of the property and not the moral right to property. For instance, Rajesh gave his pen to Mahesh to write an exam, but Rajesh thought he is lending it to him even though he did not mean it. Rajesh can use the colour of right as self-defence to escape the punishment of theft.

6.3 Identity

Identity as a defence can be raised when the offence was not recorded, or the recording was of dubious quality. Therefore, a person can assert that he or she has not committed the crime and the officers have mistakenly taken him/her as the perpetrator. Presence of corroborative evidence is very much necessary to prove he/she are innocent. For example, an alibi or shreds of evidence that the/she was present somewhere else when the theft happened

7. Conclusion

Finally, it is particularly important to protect property rights. They are very much necessary to produce wealth, develop countries and more than that it is the fruit of labour. No-one in this world could build anything of value like schools, hospitals, churches, mosques Etc if they were not guarded by law. So, theft of property is an office under Section 378 of Indian Penal Code and punishable under 379 of Indian Penal Code up to three years imprisonment or fine or both.

[1] Thomas J Bernard and co-author theoretical criminology and others. Encyclopaedia Britannica, s.v. theft: encyclopaedia 2020

[2] Ratanlal ranchhodas dhirajlal’s keshavlal Thakore and Y.V Chandrachud : Ratanlal & dhirajlal’s Indian Penal Code (Act XLV of 1860) 28th Edition ( Wadhwa and Company) 1997

[3]Chapter XVII, Section 378 of Indian Penal Code

[4] Chapter XVII, Section 378 of Indian Penal Code

[5]Nobin Chunder holder (1866) 6 WR(G) 79

[6] Shriram And Anr. Vs Thakurdas And Anr. (1978) CriLj 715

[7] Sitabai Purushottam vs Emperor, 1930, 129 Ind Cas 350

[8] Ramcharan case (1898) 18 A.W.N. 147

[9]  Indian Penal Code.

[10] Movable property, Chapter II (6-52A) of Indian Penal Code,1860 Article 22

[11] Dishonest misappropriation of property, Chapter XVII (403-404) of Indian Penal Code, 1860, Article 403

[12] Prem Singh vs State of Himachal Pradesh, 1989 CriLj 1903

[13] Pyare Lal Bhargava vs State of Rajasthan,1963 AIR 1094: 1963 SCR Supl. (1) 689

[14] K.N. Mehra vs The State of Rajasthan, 1957 AIR 369: 1957 SCR 623

[15] Lawrence v Commissioner of Police of the Metropolis, 1972 AC 626: 1971 3 WLR 225

[16] Salmond, John William. Salmond on Jurisprudence. Sweet & Maxwell, 1957.

[17] Hoseenee v Rajkrishna (1873) 20 WR (Cr) 80

[18] Punishment for theft, Chapter XVII (378-382) of Indian Penal Code – offences against property, article 379

[19] Emperor vs Mari Parsu, (1918) 20 BOMLR 87

Leave a Reply